Executors of White v. White

The opinion of the court was delivered by Bennett, J. The first question in the case relates to the liability of the principal debtor for the moneys paid on the guaranty by the executors of the testator to Wm. W. Williams. It seems, that on the 1st of July, 1840, Wm. W. White gave his note to William H. Wiliams, a brother-in-law, for three hundred and fifty dollars, payable on demand ; and on the 9th of August, 1841, Phineas White, the father, gave his guaranty to see the note paid, if his son did not pay it. No consideration is expressed in the guaranty for the undertaking, and the guaranty, was not given until more than a year after the note was given. All that the county court find, except the payment of the note by the executors of Judge White, is that the guaranty was given by Judge White, in his lifetime, for the benefit of his son. No evidence is detailed, tending to prove that the guaranty was given by Judge White to his son-in-law, at the request of his son, or that the money was paid at the request of the son, or that he in any way sanctioned the proceeding. His request can not be inferred simply from the fact that the guaranty was signed for his benefit. The case should show something further. The exceptions say, “ upon these facts the court gave judgment for the plaintiff.” The question then is fairly raised, do the facts detailed in the bill of exceptions warrant in law a recovery for the monej's paid on the guaranty? and for the reasons we have assigned, we think they do not. The judgment against the principal debtor is reversed. [343] The more important question in the case is in relation to the liability of the trustee. The moneys were paid into the hands of the supposed trustee as the agent and attorney of ¥m. W. White, and if these moneys, when paid to White, would become his property absolutely, then this process would probably lie, but if they would constitue but a trust fund, then it will be otherwise. The will gives to Wm. W. White, the son of the testator, “ one thousand five hundred dollars for- the support of himself and family, and for no other purpose.” The word “ family ” is a noun of multitude, and is capable of various significations, according to the context; and in the present case it would no doubt include the wife and children of the testator’s son. The will should be carried out according to the intent of the testator. And we can have no possible doubt that it was his object to create the one thousand five hundred dollars in the hands of his son, a trust fund, for the use specified in the will. The testator not only used affirmative ivords, appropriate to create a trust fund, but he saw fit at the same time, to add a negative. The words are: “for the support of himself and family, and for no other purpose.” To hold that under this will the son'took the one thousand five hundred dollars absolutely as his own, and not as a trust fund, would be to pervert the use of language, and the obvious intent of the testator. I am aware of no case that will warrant such a construction. In Raikes v. Ward, (1842) 1 Hare 445, the devise was to the wife: “ to the intent that she might dispose of the same for the benefit of herself and our children, in such manner as she may deem most advantageous.” It was held by the vice chancellor, that the wife took only a trust interest. In Crockett v. Crockett, 1 Hare 451, (1842), the property was to be “ at the disposal of the testator’s wife for the benefit of herself and children.” And it was there held she only took a trust interest, and that the children took an interest in the property of the testator at the time of the testator’s death. It is said in argument, that in giving effect to this item in the testator’s will, under the present bill of exceptions, we are to assume that thé son had no family, and that the decision, should be the same as if the devise had been to the sou for his support, and for no other purpose. [344] We apprehend we are to decide the case upon the facts assumed in the will, and if the construction of the will would be altered in case there was no family, this fact should come from the other side, and should affirmatively appear in the bill of exceptions. But for one, I should apprehend, if a legacy is given to a son for his support, and for no other purpose, a trust would be created, and that the property would be held subject to the trust. Judgment as to the trustee is also reversed, with costs.